National Instant Criminal Background Check System

The National Instant Criminal Background Check System (NICS) is a United States system for determining if prospective firearms or explosives buyers' name and birth year match those of a person who is not eligible to buy. It was mandated by the Brady Handgun Violence Prevention Act (Brady Law) of 1993 and launched by the Federal Bureau of Investigation (FBI) in 1998.

After a prospective buyer completes the appropriate form, the holder of a Federal Firearms License (FFL) initiates the background check by phone or computer. Most checks are determined within minutes. If a determination is not obtained within three business days then the transfer may legally be completed.

Background checks are not required under federal law for intrastate firearm transfers between private parties. Some states require background checks for firearm transfers. These states either require gun sales to be processed through an FFL holder, or they require that the buyer obtain a license or permit from the state.

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Running background checks was discussed as early as the 1930s.[1] The Gun Control Act of 1968 (GCA) mandated that individual and corporate firearms dealers have a Federal Firearms License (FFL). It also created a system for keeping prohibited persons from buying guns that relied upon buyers answering a series of "yes/no" questions such as, "Are you a fugitive from justice?". However, sellers, including FFL dealers, were not required to verify the answers.[2]

Coordinated efforts to create a national background check system did not materialize until after the March 1981 assassination attempt on President Ronald Reagan. White House press secretary, James Brady, was seriously wounded in the attack, and afterward his wife, Sarah Brady, spearheaded the push to pass the Brady Handgun Violence Prevention Act (Brady Act) of 1993. When signed into law in November of that year, the Brady Act included a GCA amendment that created the National Instant Criminal Background Check System (NICS).[1][3]

The Brady Act mandated that FFL dealers run background checks on their buyers. At first, the law applied only to handgun sales, and there was a waiting period (maximum of five days) to accommodate dealers in states that did not already have background check systems in place. Those dealers were to use state law enforcement to run checks until 1998, when the NICS would become operational and come into effect. In 1997, the Supreme Court ruled against the five-day waiting period, but by 1998 the NICS was up and running, administered by the FBI, and applied to all firearms purchases from FFL dealers, including long guns.[1][2]

After the prospective buyer completes and signs a Firearms Transaction Record (ATF Form 4473),[4] the FFL contacts the NICS by telephone or Internet.[5] When the background check is initiated three databases are accessed: the National Crime Information Center (NCIC), the Interstate Identification Index (III), and the NICS Index.[6] According to the FBI, checks are usually determined within minutes of initiation. If there is no match in any of the checked databases, the dealer is cleared to proceed with the transfer. Otherwise, the FBI's NICS Section must contact the appropriate judicial and/or law enforcement agencies for more information. Per the Brady Act, the FBI has three business days to make its decision to approve or deny the transfer. If the FFL has not received the decision within that time it may legally proceed anyway.[6]

States may implement their own NICS programs. Such states become the point of contact (POC) between their FFL dealers and the NICS. A few partial-POC states run FFL handgun checks, while the FBI runs long gun checks. FFLs in other, non-POC states access the NICS directly through the FBI.[6]

Authorized local, state, tribal, and federal agencies can update NICS Index data via the NCIC front end, or by electronic batch files. In addition, the NICS Section receives calls, often in emergency situations, from mental health care providers, police departments, and family members requesting placement of individuals into the NICS Index. Documentation justifying entry into the NICS Index must be available to originating agencies.[7]

The ATF has designated some states' firearm possession or carry permits/licenses as exempting that person from the NICS background check requirement since ownership of such permits/licenses require a background check.[8]

After the Charleston Church shooting, FBI Director James Comey apologized for "lapses in the FBI’s background-check system", saying that "An error on our part is connected to this guy’s purchase of a gun".[9] Dylan Roof's conviction for unlawfully possessing Suboxone without a prescription a month prior to his purchasing a firearm would have disqualified him as a prohibited person under the Gun Control Act of 1968.[10]

A buyer who believes that a NICS denial is erroneous may appeal the decision by either challenging the accuracy of the record used in the evaluation of the denial or claiming that the record used as basis for the denial is invalid or does not pertain to the buyer.[15] The provisions for appeals are outlined in the NICS Regulations at Title 28, Code of Federal Regulations, Part 25.10, and Subsection 103 (f) and (g) and Section 104 of the Brady Handgun Violence Prevention Act of 1993.

In an operations report in 2014 by the FBI, of a total of 90,895 "deny transactions", 4,411 (about 5%) were overturned after further research by the NICS section. According to the report, "The primary reason for the overturned deny decisions in 2014 was the appellant's fingerprints not matching the fingerprints of the subject of the firearms-disqualifying record. Another chief reason deny decisions are overturned on appeal pertain to criminal history records that do not contain current and accurate information ... In cases where the matches are refuted by fingerprints, the NICS Section may overturn the subject's deny decision and allow the transaction to proceed. However, because the NICS is required to purge all identifying information regarding proceed transactions within 24 hours of notification to the FFL, in many instances, the process must be repeated when the same transferee attempts subsequent firearm purchases and is again matched to the same prohibiting record."[17] The NICS system however also includes a "Voluntary Appeal File" procedure, by which an individual may request that the NICS section retain their identifying information, rather than purging it, to prevent future erroneous denials or delays.[18]

Between November 30, 1998 and May 31, 2016, the NICS denied 1,323,172 transactions. The top reasons for denials include: "Convicted of a crime punishable by more than one year or a misdemeanor punishable by more than two years", "Fugitive from Justice", "Misdemeanor Crime of Domestic Violence Conviction" and "Unlawful User/Addicted to a Controlled Substance".[19]

In January 2016, USA Today reported that the FBI had stopped processing NICS denial appeals in October 2015, leaving a backlog of approximately 7,100 appeals as of January 20.[20] The National Rifle Association said that the failure to review the appeals was a "gross disregard for those illegitimately denied their Second Amendment rights".[16]